| Winckworth Sherwood |
Issue 30 Planning Ahead |
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bb133eleftPlanning Ahead Issue 30 - June 2010
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| Budget 2010 |
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The Budget confirms the following measures in relation to planning:
The prime minister has also pledged to make this the greenest government ever and plans to reduce the Government's emissions by 10% between mid-May 2010 and mid-May 2011. The Budget contains a number of environmental announcements which include the following:
The Budget can be viewed at:
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| Court of Appeal Defines 'Likely' as Constituting a 'Real Risk' |
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The recent case of R (on the application of Vivienne Morge) v Hampshire County Council Court of Appeal [2010] EWCA Civ 608 was an unsuccessful appeal against refusal of judicial review of a decision of the respondent local planning authority granting planning permission for a bus route along a disused railway line. The judgment is wide-ranging and provides useful authority in a number of areas:
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| Distinguishing Subsequent Applications |
| In the recent case of R (on the application of Smyth) v Camden London Borough Council (2010) QBD (Admin), it was held that where planning permission had been previously refused, it is important for the planning officer's report to distinguish why a subsequent application was materially different when permission is granted on a later and similar application. |
| Material Considerations and Proximity |
| In the case of R (on the application of Copeland) v Tower Hamlets LBC (QBD), it was held that Tower Hamlets Council acted unlawfully by approving a planning application for a takeaway near Bishop Challoner Catholic collegiate school. Mr Justice Cranston ruled that councillors had voted to grant permission after being wrongly advised that they could not take into account the proximity of the school because it was not a material consideration. |
| Proposed Merger of HCA and LDA |
| The Mayor of London has set out his "wish list" for the London region of the Homes and Communities Agency (HCA) to be devolved to the Greater London Authority (GLA) and the functions of the London Development Agency to be incorporated into the GLA. The merged body would be formed as an executive arm of the GLA as part of a more streamlined GLA group with greater powers. It is also proposed that responsibility for the Port of London Authority and the Royal Parks Agency should be devolved from Whitehall to the Mayor. The Mayor's proposals are subject to government approval and would be effective after changes in legislation. |
| Feedback |
PLANNING AHEAD
Issue 30 - June 2010
New PPS 3
Abolition of Regional Spatial Strategies
Housing and Planning Delivery Grant Cut for 2010-2011
Budget 2010
Court of Appeal defines 'likely' as constituting a 'real risk'
Distinguishing Subsequent Applications
Material Considerations and Proximity
Proposed Merger of HCA and LDA
New PPS 3
Planning Policy Statement 3 (PPS3) was published on 9 June 2010 with the following amendments:
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The minimum density of 30 dwellings per hectare on new housing developments has been removed. Local Planning Authorities can now set out a range of densities across the plan area rather than one broad density range (paragraph 47).
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The definition of "previously developed land" has been revised to exclude private residential gardens. This amendment was made to prevent the practice of unwanted "garden grabbing" where developers build new homes on private residential gardens which were previously classified as Brownfield land and in the same category as derelict factories and disused railway sidings (Annex B: Definitions).
The revised PPS3 can be viewed below:
http://www.communities.gov.uk/documents/planningandbuilding/pdf/planningpolicystatement3.pdf
Abolition of Regional Spatial Strategies
Eric Pickles, the Secretary of State for Communities and Local Government, has written to Council leaders confirming the Coalition Government's commitment to abolish Regional Spatial Strategies and return decision making powers on housing and planning to Local Planning Authorities (LPAs). The abolition does not apply to London where The London Plan will continue to be the strategic spatial development document for London. The letter also states that decisions on housing supply (including the provision of travellers sites) will rest with LPAs without the framework of regional numbers and plans (as now confirmed by the revised PPS3). LPAs and The Planning Inspectorate are expected to regard the letter from Eric Pickles as a material consideration when making planning decisions. There has been no announcement from the government about what measures will be put in place to replace RSS. The Planning Inspectorate has also published a guidance note for Inspectors entitled, Regional Strategies – Forthcoming Abolition. The letter from Eric Pickles and the guidance note can be viewed at:
Housing and Planning Delivery Grant Cut for 2010-2011
The Government has published details of the £1.166 billion Local Government savings to be made in 2010/2011. As part of these Government savings, the Housing and Planning Delivery Grant of £146 million for 2010-2011 will be cut. The Royal Town Planning Institute has expressed concerns that this will delay the making of local development plans and slow economic recovery. The National Affordable Housing Programme and Kickstart will also lose £100 million and £50 million in funding respectively which had been announced but not yet allocated.
Details of the local government savings are available from:
http://www.communities.gov.uk/news/newsroom/1611369
Budget 2010
The Budget confirms the following measures in relation to planning:
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Regional Development Agencies will be abolished through the Public Bodies Bill;
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the creation of strong local enterprise partnerships to enable improved co-ordination of public and private investment in housing, transport, regeneration, skills and other areas of economic development;
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the Government will consider the most suitable framework of incentives for local authorities to support growth (including business rate and council tax incentives) to allow local authorities to reinvest the benefits of growth into local economies;
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the Government will promote the role for a simplified planning consents process in areas where there is potential or a need for business growth, through the use of Local Development Orders as part of a shift towards a more locally driven planning regime;
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the creation of Infrastructure UK to enable greater private sector investment in infrastructure and improve long-term planning and delivery and a national infrastructure plan will be published in the autumn that will set out the goals for UK infrastructure; and
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there is no mention of the Community Infrastructure Levy in the Budget.
The prime minister has also pledged to make this the greenest government ever and plans to reduce the Government's emissions by 10% between mid-May 2010 and mid-May 2011. The Budget contains a number of environmental announcements which include the following:
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a move towards a low-carbon economy;
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reform of the climate change levy in order to provide more certainty and support to the carbon price;
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the creation of a Green Investment Bank to help the UK meet the low-carbon investment challenge; and
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the establishment of a Green Deal for households to help people invest in home energy efficiency improvements that can pay for themselves through the savings in energy bills.
The Budget can be viewed at:
http://www.hm-treasury.gov.uk/d/junebudget_complete.pdf
Court of Appeal defines 'likely' as constituting a 'real risk'
The recent case of R (on the application of Vivienne Morge) v Hampshire County Council Court of Appeal [2010] EWCA Civ 608 was an unsuccessful appeal against refusal of judicial review of a decision of the respondent local planning authority granting planning permission for a bus route along a disused railway line. The judgment is wide-ranging and provides useful authority in a number of areas:
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Under the Environmental Impact Assessment ('EIA') Regulations, an EIA is needed where a development is likely to have a significant impact on the environment. The court held that 'likely' refers to there being a 'real risk' as opposed to a 'probability'.
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A successful judicial review in the planning sphere must pass a high evidential threshold. Courts will only interfere with decisions made by planning authorities (in this case the decision not to require an EIA) if the decision departs from the range of decisions open to a rational decision maker, understanding and seeking to apply the relevant law. Although the planning authority had made some errors in arriving at a decision, the errors were not significant enough to have changed the result of their decision.
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The Court held that the occasional death of a bat... unable to take evasive action from... buses will be a trivial disturbance not having a negative impact on the species as a whole. Therefore the driving of buses would not constitute a deliberate disturbance to bats in breach of the Consevation (Natural Habitats) Regulations 1994.
Distinguishing Subsequent Applications
In the recent case of R (on the application of Smyth) v Camden London Borough Council (2010) QBD (Admin), it was held that where planning permission had been previously refused, it is important for the planning officer's report to distinguish why a subsequent application was materially different when permission is granted on a later and similar application.
Material Considerations and Proximity
In the case of R (on the application of Copeland) v Tower Hamlets LBC (QBD), it was held that Tower Hamlets Council acted unlawfully by approving a planning application for a takeaway near Bishop Challoner Catholic collegiate school. Mr Justice Cranston ruled that councillors had voted to grant permission after being wrongly advised that they could not take into account the proximity of the school because it was not a material consideration.
Proposed Merger of HCA and LDA
The Mayor of London has set out his "wish list" for the London region of the Homes and Communities Agency (HCA) to be devolved to the Greater London Authority (GLA) and the functions of the London Development Agency to be incorporated into the GLA. The merged body would be formed as an executive arm of the GLA as part of a more streamlined GLA group with greater powers. It is also proposed that responsibility for the Port of London Authority and the Royal Parks Agency should be devolved from Whitehall to the Mayor. The Mayor's proposals are subject to government approval and would be effective after changes in legislation.
Sara Hanrahan - Partner
Tel: 020 7593 5144
Nicola Raistrick - Partner
Tel: 020 7593 0275
Richard Bull - Solicitor
Tel: 020 7593 5074
Anjana Ghosh - Solicitor
aghosh@wslaw.co.uk
Tel: 020 7593 5088